YOUNG v.

HECTOR
Robert S. YOUNG, Appellant, v. Alice G. HECTOR, Appellee. 96-2847. No. -- June 24, 1998 Before SCHWARTZ, C.J., and NESBITT and GODERICH, JJ.Before SCHWARTZ, C.J., and NESBITT, JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, and SORONDO, JJ.* Barbara Green, Coral Gables; Ellen Lyons, Miami, for appellant.Young, Berman, Karpf, and Burton Young, and Andrew S. Berman, Miami Beach; Hector and Harke, and Lance A. Harke, Miami; Amy D. Ronner, Miami, for appellee on rehearing. This is an appeal from a final judgment of dissolution of marriage We reverse . and remand for further proceedings. The record indicates that the parties were married in New Mexico in The parties have two daughters, Baylor, who was born in February 1982. 1985, and Avery, Since the children were born, the parties have who was born in 1988. always had either a live-in nanny, au pair, or housekeeper, who has helped care for the children. At the time of their marriage, one spouse, an architect, was involved in several business ventures, including a publishing company and The architect was very successful until the stock market crashed in October 1987. a custom-home building firm. The other spouse was an attorney, who, at the time of the parties' marriage The attorney's income would vary somewhere , had a law firm. between $30,000 and nearly $100,000 per year. After the parties' youngest child was born, the parties discussed a possible The architect told the attorney that if the relocation to Florida. attorney could find a job in Miami, the architect would be willing to In 1989, the attorney found employment at a prestigious, relocate. Shortly mid-sized law firm earning approximately $120,000 per year. thereafter, the attorney and the children

relocated to Miami, while the architect remained in New Mexico for six months to finish several projects and In the summer to sell the parties' home. of 1992, the architect returned to New Mexico for approximately 14 months to During the 14month period, the direct a treasure recovery project. children remained in Miami with the attorney, but the children visited with the architect approximately every five weeks. In the fall of 1993, the attorney, who by this time was earning approximately $275,000 with the mid-sized law firm, accepted a shareholder position at one of Florida's Shortly after the largest law firms earning over $300,000 per year. attorney accepted the position with the new firm, the architect returned Upon the architect's return, the parties separated to Florida. The attorney although they both continued to live in the marital home. filed for divorce in May 1995. At trial, the court accepted evidence relating to alimony, child custody, and the equitable division of the marital assets and The evidence included the testimony liabilities. of the parties, neighbors, friends, the children's teacher, school counselor, and the managing partner of the law firm where the attorney is currently employed. The attorney testified that when the attorney is involved in a trial, the attorney works approximately 12 to 14 hours per day, six to seven days On the other h per week. and, when the attorney is not in trial, the attorney works 45 to 50 hours Moreover, during the past two years, the attorney has had per week. several cases that have required the attorney to travel to Central When traveling, the attorney would either leave Miami very Florida. early in the morning and return The cases late at night, or would stay in Central Florida overnight. that required the attorney to travel to Central Florida have been settled, and the attorney's remaining cases will no longer require the attorney to travel outside of In addition to the attorney's employment at the law firm, the attorney also teaches at a law school. Miami. The managing partner gave deposition testimony stating that the attorney is a senior litigation partner and is The managing partner also testified that responsible for major cases. it is very easy to accommodate family problems when an attorney works in the corporate or real estate department, but that it is very difficult to accommodate family problems when an attorney works in the Further, he stated that the average litigation litigation department. partner works 10 to 11 hours per day, and that litigators cannot work only eight hours per day, five days per week.

The parties testified that except for a few small remodeling jobs, the arc After the hitect has been unemployed for approximately six years. architect moved to Miami, the architect attempted to find employment, The architect lacks the computer skills that are but was unsuccessful. needed to find employment as an architect in the present job market. The architect testified that both University of Miami and Florida International University have a two-year masters program that will teach the necessary computer skills. The record demonstrates that since returning to Miami in the fall of For example, the architect started 1993, the architect has been very dedicated to the children. and led one of the children's Brownie troop, coached one of the children's soccer team, regularly volunteered at the children's school, and takes the children to doctor and dentist appointments. At trial, the guardian ad litem's report was introduced into evidence, and he In his report, the guardian ad litem also testified at trial. recommended that the attorney be designated the primary residential parent and that the architect be granted very liberal and The report states that the architect is warmer frequent access to the children. and phenomenal with the children, and that the attorney tends to be somewhat cooler by nature, but consistently spends time with the children and makes a point out of doing things with them on weekends and when The guardian ad litem also [the attorney] is available evenings. found that since the parties have been living in Miami, the architect has been the dominant caretaker during the day, and [the The attorney] on weekends, although both pitch in as needed. guardian ad litem testified that he looked at three determinative factors in recommending that the attorney be named the primary First, the attorney has been more economically residential parent. stable throughout the marriage. Second, the attorney has been the more constant factor throughout There have been times in the children's life the entire relationship. when [the architect] has been, for whatever reasons, away from the home for substantial periods of time and Third, the attorney controls [anger] better around the kids. [the attorney] has been the dominant influence. Isabel Singleton, a neighbor and family friend, testified that the architect pays attention to detail, is very goal-oriented, and very She also stated that the attorney is involved in the caring. children's activities, plays with the children, takes them to the movies, the beach, and the zoo, and Further, she testified that the attorney is usually available on weekends brings out their self-expression. and that the attorney's work has not interfered with the ability to be a good parent.

Laura Mirabito, another neighbor and family friend, testified that the architect has a very close relationship with the children, coaches the soccer team, picks the children up from school, coordinates the children's play dates, and On the other h participates in school activities. and, she testified that the attorney is the one who coordinates the sleepovers, and that the attorney is at home on the weekends and in the evenings. Keith Chasin, who coached in the same soccer club as the architect, testified that the architect interacts with the children well and He also stated that he has never met the attorney. is a good coach. Joan Hamel, the mother of one of the children's best friend, testified that the architect gets to the children's school functions early and On the other h videotapes the children. and, she stated that she once saw the attorney arrive late and read Further, the architect is the one law books during the performance. who usually picks up the children from her house; the attorney has only picked up the children approximately three times in the last four She testified that the architect is one years. of Moreover, the architect is the one who leads the Brownie troop, the few parents who stays at parties that the children attend. and at one meeting, one of the parties' children stated that the attorney is never home and does Further, she described the architect as not read the Brownie's paper. Finally, she stated that all the children in the a devoted parent. Brownie troop, including the parties' children, adore the architect. Dulce del Castillo, one of the children's former pre-school teachers, testified that the architect For example, the architect made constantly volunteered at the school. repairs to the classroom, attended field trips, and participated in cooking and Whereas, the attorney's involvement was limited to dropping the children art activities. off at school eight to ten times during the school year. Lynn Drittel, a school counselor, testified that the architect involved the Further, when she sent home children in the school's divorce group. questionnaires, only the architect's questionnaire was returned. Finally, she stated that the architect volunteered for the second grade self-esteem program. David Harper, a fellow parent and He stated that the architect is a good parent, a good caretaker, patient with the children, sports coach, also testified. and involved He also testified that the in the children's daily activities. attorney was involved in the parent-child soccer games, even though the The attorney also attended games were played in the early afternoon. the Saturday games and the Further, he stated

that the architect was the parent-child program. caretaker on a daily basis, but that the attorney was available and that the children responded well to the attorney. Finally, Carol Lumpkin, who is a neighbor and family friend, testified that both parents are loving and caring parents, and that both have a lot to offer the children. After evaluating the relevant statutory factors of section 61.13(3), Florida Statutes (1995), the trial court awarded primary residential custody of the children to the attorney, with frequent and The final order also provides that for one year within five years continuing contact with the architect. of entry of this Final Judgment but not sooner than 2 years of entry herein of, primary physical residence of the The trial court denied the children shall be with the [architect]. architect's request for permanent alimony, but granted the architect four months of The trial court also distributed the parties' marital assets rehabilitative alimony at $2,000 per month. and The architect appeals from this final judgment. Finally, the architect was awarded $10,000 in attorney's fees. debts. The architect contends that the trial court abused its discretion by granting primary residential custody of We agree. the children to the attorney. A trial court's determination of custody is subject to an abuse of discretion standard of review. Sullivan v. Sullivan, 668 So.2d 329, 330 (Fla. 4th DCA 1996)(citing An appellate court Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). must affirm if there is substantial competent evidence to support the trial court's finding that the custody award was in the best interests of the See Duchesneau v. Duchesneau, 692 So.2d 205, 206 (Fla. 5th DCA child. 1997); Cherradi v. Lavoie, 662 So.2d 751, 753 (Fla. 4th DCA 1995); Gardner v. Gardner, 545 So.2d 339, 340 (Fla. 4th DCA 1989); Quirino v. Quirino, 459 So.2d 1183 (Fla. 3d DCA 1984). A trial court's decision as to which parent should be awarded primary residential custody of the children should attempt to preserve and Such a continuation would clearly be in the best interests continue the caretaking roles that the parties had established. of The American Law Institute has addressed this issue in its Illustrations: the children. Gary and Nancy have three children, ages 12, 9, and 3. Gary is a high-school graduate and For the first four years after their first child was born, Gary worked outside the home Nancy, a veterinarian. and Nancy was the primary caretaker of When their second child was one year old, they decided to switch roles because the children. of After eight years Nancy's greater earning capacity. of this

arrangement, Gary and Nancy Each wants primary custodial responsibility for the separated. Nancy argues that since she gave up being the primary children. caretaker for the benefit of the family and not because of personal preference, Gary should not be favored based on his larger caretaking role. Nancy's fairness argument is irrelevant to how custodial responsibility should The court should allocate custodial responsibility based be allocated on the parents' past caretaking roles. Principles of the Law of Family Dissolution: Analysis and 2.09, at 121 (1998). Recommendations, Tentative Draft No. 3, Part I, American Law Institute, In the instant case, the trial court's award of primary residential custody of the children to the attorney has the effect of not It continuing the caretaking roles that the parties had established. is clear from the record that it is the architect who is available to the children after school, takes the children to the doctor and dentist appointments, and actively participates in the children's school and after-school activities. Moreover, the guardian ad litem's testimony indicates that one of the determinative factors in recommending that the attorney be designated the primary residential parent is that the attorney has been more economically stable throughout the marriage In light . of the child support guidelines, a parent's financial resources (or lack of Principles ) should not be a determinative factor in deciding which parent should be the primary residential parent. of the Law of Family Dissolution: Analysis and Recommendations, 2.14, at 250 Tentative Draft No. 3, Part I, American Law Institute, A parent's financial resources is only one factor that must be (1998). balanced with the remaining statutory factors outlined in section When balancing the statutory 61.13(3), Florida Statutes (1995). factors, the fact that one parent is the primary caretaker should always outweigh the fact that the other parent is more financially stable. The record in the instant case clearly indicates that the architect, although not as financially fortunate as the attorney, has always, as the primary caretaker, provided the children with food, clothing, shelter, and The record clearly indicates that the architect, with an adequate amount medical attention. of child support, would continue to provide for the children. Moreover, the guardian ad litem's recommendation was also based on the fact that architect has been away from the home for substantial periods of time and Under the circumstances [the attorney] has been the dominant influence. of this case,

the fact that architect was away from the home prior to the separation should not be a determinative factor where the architect has continually been the primary caretaker since the fall of 1993. Therefore, after reviewing the record, including the testimony of the parties and other witnesses, we find that the trial court abused its discretion by awarding primary residential custody of However, on rem the minor children to the attorney. and, the trial court should grant the attorney liberal and frequent access to the children. Finally, the award of alimony to the architect was inadequate in light of the rehabilitative plan presented by the architect and the lifestyle established during the parties' marriage, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the distribution of the parties' assets and liabilities was inequitable, and the award of On rem attorney's fees to the architect was insufficient. and, the trial court should revisit these issues along with the issue of child support, especially in light of Therefore, we reverse these awards this Court's disposition as to primary residential custody. and remand for further proceedings, including evidentiary hearings, if necessary. Reversed and remanded. ON REHEARING EN BANC Upon our rehearing en banc of this cause, we withdraw the prior panel opinion issued on June 24, 1998 and substitute the following opinion in its stead. The former husband/father (Robert Young) appeals from the final judgment of dissolution of marriage We affirm the trial court's decision designating the former wife/mother (Alice Hector) as the primary custodial parent . of the two minor children but reverse and remand the court's determination as to rehabilitative alimony, distribution of the parties' assets and liabilities and attorney's fees for further proceedings. The father's main contention on this appeal is that the trial court abused its discretion when it awarded custody of the minor chil After laboriously reviewing all We do not agree. dren to the mother. of the record evidence in this case, we conclude that there was substantial competent evidence to support the trial court's discretionary call in Thus, there is no basis for us to overturn the lower this regard. court's decision.

As we see it, the child custody issue in this case, with all its attendant notoriety, centers only around our standard of review The simple issue for our consideration is as an appellate court. whether the trial court abused its discretion when it determined that the best interests of the two minor children dictated that their mother be designated their See Canakaris v. Canakaris, 382 So.2d 1197, primary custodial parent. 1203 (Fla.1980); Grant v. Corbitt, 95 So.2d 25, 28 (Fla.1957); If Sullivan v. Sullivan, 668 So.2d 329, 329-30 (Fla. 4th DCA 1996). there is substantial competent evidence to support the trial court's determination, it is firmly established that a trial court cannot be deemed to have abused its discretion and its See Canakaris, 382 So.2d ruling must be left undisturbed on appeal. at 1203; Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975); Bader v. Bader, 639 So.2d 122, 124 (Fla. 2d DCA 1994) (en banc); Jones v. Jones, 633 So.2d 1096, 1099 (Fla. 5th DCA 1994); Ross v. Ross, 321 So.2d 443, Appellate courts are never permitted to retry 444 (Fla. 3d DCA 1975). a court's determination in this regard de novo or reweigh the evidence. See Reinhart v. Reinhart, 291 So.2d 103, 105 (Fla. 1st DCA 1974) (stating [i]t may well be that were we permitted to hear the case de However, such is not novo we might enter a different final judgment. our prerogative.); see also Miller v. Miller, 371 So.2d 565, 566 (Fla. 4th DCA 1979) (holding that appellate court may not substitute its judgment for that of trial judge). At the outset, it is important to emphasize that both the mother and father are very loving and capable Nobody disputes this fact, which alone made the trial parents. What then tilted the court's determination all the more difficult. scales in favor of awarding The father suggests that it was gender bias. custody to the mother? The record evidence, however, simply does not support this suggestion. I At the time of their marriage in 1982, both the father and mother were successful professionals He was an architectural designer with his own home in New Mexico. She design firm as well as an entrepreneur with a publishing company. Their was an attorney in private practice at her own firm. marriage He had no children from his first was a second for both. marriage She had custody . of her two minor children (now grown) from her first marriage which she successfully reared while simultaneously juggling the demands of her law practice.1 Hector and Young became the parents of two daughters born in 1985 and After the birth 1988. of their children, both parents continued to work outside of the home and pursued their respective professional endeavors with the assistance of As typical working parents, they would both arrive home a live-in nanny, au pair, or

housekeeper. between the hours of 5:30 and Both contributed to 6:00 each evening. and shared in the household expenditures at all times. Sometime in late 1987, the father's business ventures began to suffer certain financial reversals and the Both parties mother became bored with her practice in New Mexico. Although there is a complete conflict in agreed to relocate to Miami. the record between the parties as to who broached the subject of the couple's relocation to Miami and the circumstances under which they would relocate in terms of their respective careers, it is significant that neither of these parties ever testified that they ever agreed or expected the mother to pursue her legal career while the father remained at home as the To the contrary, the fulltime caregiver to their minor children. father actively pursued job leads in the Miami area prior to the couple's relocation. In June 1989, the mother and During that summer, she studied for her two minor daughters arrived in Miami first. and took the Florida Bar exam and landed The father stayed behind in New a position with a mid-sized law firm. Mexico until October 1989 in order to complete the construction of a new house and to remodel the couple's New Mexico home in order to enhance its resale potential. After the father's move to Miami in the fall of 1989, he studied for and Thereafter, during the spring passed the Florida contractor's examination. and summer of 1990, the father spent his time repairing the couple's first marital Thereafter, he renovated the home which ultimately residence in Miami. It is significant to became the couple's second marital residence. point out at this juncture, that it is undisputed that from the time the minor children were brought to Miami in 1989 until the fall of 1993, the needs of the minor children were attended to by a live-in housekeeper when they were not in school during the day and by the mother upon her arrival from work in the evenings. After the father's renovations to the couple's second Miami residence were completed and the family moved in, the mother testified that she began to have serious discussions (which eventually escalated into arguments) about the Although the mother was father's need to find gainful employment. earning a very decent income as an attorney at the time, it was undisputed that this family was operating with a negative cash flow. Rather than pursue gainful employment to financially assist the household and During the remainder his minor children, the father turned his attentions elsewhere. of 1990 through 1993, the father left the state and was frequently away

from the mother and minor During this time, he returned to New children for months at a time. Mexico to attend to lingering matters involving his prior businesses there and He also visited his sick brother in Arkansas to make preparations for an upcoming treasure hunt. and later handled During this his brother's estate matters upon his brother's demise. time, the father spent approximately fourteen months away from his The family pursuing buried gold in New Mexico on a treasure hunt. minor children were continuously being cared for by the housekeeper/babysitter during the day and The father saw his family during this fourteen month period once every five weeks the mother after work. and according to the mother, only at her insistence and pursuant to her arrangements for such family reunions. When the father finally returned to South Florida, in the fall of 1993, the mother had accepted a partnership position with a large Florida law firm at a salary of approximately Even with the mother's salary increase, the family $300,000 annually. At that time, the couple no longer had a remained steep in debt. The children were in a live-in nanny or babysitter for the children. public school fulltime between the hours of 8:30 a.m. and 2:00-3:00 p.m. The mother had employed a housekeeper (Hattie) who came to the house each weekday between the hours of noon and 8:00 p.m. to clean, pickup and The mother's time with the children during the weekdays consisted babysit the children after school. of her awakening, dressing, and having breakfast with them prior to transporting them to school, and spending The mother the early evening hours with them prior to their bedtime. engaged in activities with the children on a full-time basis on the When the children became ill or distressed during the middle weekends. of the night, the mother was always the parent they looked to for assistance or solace.2 Approximately one month after the father's return to the household in 1993, the mother asked the father for a divorce because of his continued refusal to seek gainful employment and It must be re-emphasized that at no time did the mother due to his extramarital affair in New Mexico. and The father c father have any mutually expressed or tacit agreement for the father to remain unemployed. andidly conceded as much at trial.3 Consequently, this case simply did not involve the typical scenario where two spouses, by mutual agreement, agreed for one to remain at home to care for the children and the other spouse to work outside of the home. Once the mother announced to the father that she wanted a divorce, the father began to spend less of his Although he steadfastly refused to make any time away from Miami. efforts to obtain employment, he did become more involved in the

activities of his two daughters, who by that time, were 8 and 5. Since both girls were in school full-time at this time, the father's involvement with the girls' activities occurred primarily Mondays through Fridays between the hours of 3:00 p.m. and 6:30 Upon the mother's p.m., prior to the mother's arrival from work. arrival at the home, the father generally absented himself.4 The father nevertheless maintained that he was the primary caretaker or Mr. Mom of these two children in the three years preceding this dissolution proceeding. The trial court viewed this contention with some degree of skepticism as it was entitled.5 The trial court's skepticism or disbelief was not at all unreasonable, given the father's admission that the nanny, Hattie, had taken care of these children in large part during the afternoon hours until their mother's The father's concession is what prompted the court to arrival at home. ultimately make inquiry as to why the father did not seek employment or alternatively, why there was a need for a full-time nanny: * * * * [Father's attorney]: Who picks the kids up? [Father]: If I am tied up, whether Either Hattie or I. Typically, it's me. it's a meeting or whatever, or if I go somewhere like your office, way up in North Miami Beach, and I don't get back in time and I thought I would, I can call Hattie and She picks them up frequently. She does. say, Hattie, please pick up the children. [The Court]: Is Hattie there five days a week? [Father]: She cleans the house in the She comes at noon every day. Yes sir. I We eat. The kids eat. She prepares the dinners. afternoons. She cleans up after eat with the children every day typically at 6:30. that. She'll draw a bath for Avery and she leaves at eight o'clock in the evening five days a week. Why don't you get a job. [The Court]: Maybe I'm missing something. [Father]: That's my degree, but Well, because my background is architecture. Today, it's computer when I graduated, they did not have computers. dominated and I'm computer illiterate.

I, in talking to Larry Foreman, who was court appointed as the career consultant, anticipated that I should go to graduate school to acquire these skills that I'm lacking right now. They like what I have to They like me. I've gone on interviews. offer but their offices are basically all computerized. Previously, because of the number of Ms. Hector has a secretary that h hours Ms. Hector worked, I filled in. andles her whole life at the office and in a sense I was the secretary that handled her whole life at home and took care of the children. [The Court]: But you've got a nanny doing that. They can drop Nannies can pick up. [Father]: No sir, I don't believe you can buy parents. off. [The Court]: Why [sic] do you need the nanny for, if you're there doing it? I could do a lot She cleans. [Father]: She cooks. of Typically, people that have incomes that. of over a quarter of a million dollars or $300,000 can afford the luxury of having help, hired help. I am not the kind of person that sits around and I try to do meaningful, worthwhile things. watches soap operas. [The Court]: Go ahead, counsel. * * * * Contrary to the father's suggestion on appeal, this inquiry by the court is not evidence of Given the undisputed large financial indebtedness gender bias. of this couple, the trial court's inquiry about the need to employ a full-time nanny was both logical and practical under these circumstances and certainly could have also been appropriately posed to the mother if she had been recalcitrant about seeking gainful employment to assist the family's financial situation.6 II Apart from this evidence, the court also had the report and recommendations of the In recommending that the mother guardian ad litem upon which to rely. be named the primary custodial parent, the guardian ad litem cited three factors, all of

First which we find are supported by competent substantial evidence in the record. of all, the guardian noted that the mother had been the more economically stable of the two parents throughout the marriage. We do not believe that the guardian gave the mother the edge simply We believe, that what the guardian because she earned a large salary. was attempting to convey was that the mother had shown a proclivity to remain steadily employed, unlike the father who unilaterally removed himself from the job market, although he was employable and The trial court concluded that the father was where he is largely because the family needed the additional income. of his The trial court was obviously not oblivious to the fact own choice. that the father was also a Florida licensed contractor who had built homes in New Mexico and renovated both of Given the father's skills the parties' Florida marital residences. and experience, the trial court was certainly entitled to reasonably conclude that the father was employable upon his return to Miami in 1993-one year after Hurricane Andrew literally destroyed thousands of residences and commercial establishments in South Dade County and building contractors were in heavy demand Given a choice . between the mother, who maintained constant steady employment throughout the marriage to support the children (regardless of the amount of her income), and the father who unilaterally and steadfastly refused to do the same, the trial court's designation of the mother as custodial parent cannot be deemed an abuse of discretion.7 61.13(3)(c), Fla. Stat. (1995). See The second factor relied upon by the guardian ad litem in recommending that the mother be declared the primary custodial parent was the fact that the mother had been a constant factor and dominant influence in the children's lives and The guardian ad litem observed: the father had not. There have been times in the children's life [sic] when Bob has been, for whatever reasons, away from the home for substantial periods of time and Alice has been the dominant influence. More recently, while she has been working, he has been available at home more hours of the day than she has been, but over a continuum of time, I believe that her presence has been a more steady presence in the sense of available almost the same time for the kids throughout the relationship, whereas Bob has been intensely absent and intensely present. In its determination as to the best interests of the minor children, the trial court obviously deemed it more important to assess the children's time spent with each of the parents throughout the course of the marriage and not merely focus on the

years immediately preceding the announcement of the That is, the trial court, in an effort to dissolution action. maintain continuity, could have legitimately determined that the children's best interests dictate that they remain with the parent who had continuously been there to care for their needs throughout their young lives rather than the parent who had devoted a substantial amount of time with them perhaps only when it was convenient and/or 61.13(3)(d), Fla. Stat. The record See opportunistic to do so. evidence clearly supports the trial court's conclusion that the mother Thus, had been the constant parent throughout the children's lives. there was no basis for the panel to overturn the trial court's finding in this regard. The last factor cited by the guardian ad litem, which tilted the scale in favor of the mother, was the mother's superior ability to control her anger around The guardian ad litem testified that he personally the children. witnessed one of the father's outbursts of anger in the presence of the For that reason, the guardian, who is also a retired children. circuit court judge, went so far as to recommend that the father receive anger control counseling. Given this substantial competent evidence in the record, we cannot conclude that the trial court abused its discretion when it awarded custody of the Nor can we conclude that the court's minor children to their mother. determination was impermissibly influenced by gender bias against the father. Custody determinations are perhaps the most sensitive and We recognize that at times, it can be a very difficult delicate decisions that family court judges make. and agonizing call for the trial judge to make when both parents are as loving and caring as the mother and Nevertheless, once the trial court makes this decision father are in this case. and the decision is supported by substantial competent evidence, we recognize that the trial court's determination should not be lightly second-guessed and Indeed, the trial court has the unique advantage overturned by an appellate court merely reviewing the cold-naked record. of meeting Thus, the trial court, both parents prior to making its decision. unlike an appellate court, is entitled to rely, not only upon the record evidence presented, but upon its mental impressions formed about each of the parents and their respective parenting strengths and Moreover, trial judges sitting as triers weaknesses. of fact in these proceedings are not required to shed their common sense and life's experiences when they don their black robes to preside over these As long as the trial court's decision is supported by proceedings. substantial competent evidence and is not based upon legally impermissible factors such as gender bias, it For this reason, we affirm the order must be affirmed on appeal. awarding primary residential

custody of However, on rem the minor children to the mother. and, the trial court should grant the father liberal and frequent access to the children. III Finally, we agree that the award of alimony to the father was inadequate in light of his rehabilitative plan presented to the court and the lifestyle established during the parties' marriage Moreover, the distribution Canakaris, 382 So.2d at 1201-05. . of the parties' assets and liabilities was inequitable and the award of On rem attorney's fees to the father's lawyer was insufficient. and Thus, we reverse these awards , the trial court should revisit these issues. and remand for further proceedings, including evidentiary hearings, if necessary. Affirmed in part and reversed and remanded in part. I endorse and agree I write separately only to express my with the majority opinion. strongly held view that, despite all that has been said about the peripheral implications of this case, the reality is that the pivotal issue involved in this case can, and must, be resolved by going through the simple exercise of examining the trial court's decision according to the appropriate standard of review that this Court must follow. Simply put, there is more than substantial competent evidence to support the trial court's decision to name the mother as the primary residential parent of Furthermore, the record does not reflect any abuse the children in this case. of discretion by the trial court in reaching that decision. While there is probably also an appropriate quantum of evidence that would have supported naming the father as the primary residential parent, the trial court, after hearing and weighing all of the evidence, determined that it was in the best interest of the children to name the mother as the primary residential parent. Clearly, this Court cannot second-guess the decision of the trial court as, I respectfully suggest, the original panel opinion did. Rather, as stated above, this Court's function is limited solely to reviewing the decision of the trial court in light of the appropriate standard of review. The record in this case is replete with substantial competent evidence that supports the decision of Such evidence includes the testimony the trial court. of the Guardian Ad Litem, the mother of the children, several neighbors of The

following is a summary the parties, as well as the father himself. of various portions of the record that support the trial court's decision: As I indicated above, I believe the record would also have supported the trial court if the father had been named as the primary residential Notwithst parent. anding that belief, I note that the record contains negative testimony about the father's qualifications to be the primary residential parent. While I do not believe that these negative factors should, standing alone, prevent the father from being named the primary residential parent, when viewed in the context of the entire trial, as the trial judge would have viewed them, these negative factors, when considered in connection with all of the preceding testimony about the mother, clearly can be viewed as part of the basis for the trial judge's conclusion that it would be in the best interests of the children for the mother to be named as the primary residential parent. Solely for demonstrating what I believe to be the correctness of the comments that I have expressed in the preceding paragraph, the following is a brief summary of portions of the record that reflect negatively on the father's ability to be named the primary residential parent: For all of the foregoing reasons, as well as the very cogent discussion of the facts and law contained in the majority opinion, I strongly agree that the original panel opinion rendered by this Court on this case must be reversed and the decision of the trial court, to name the mother as the primary residential parent, must be affirmed. I agree with the majority and write separately only to address those portions of the dissents which rely on the original panel's opinion. The original panel opinion states that a trial court's decision as to which parent should be awarded primary residential custody of the children should attempt to preserve and Such a continuation would clearly be in the best interest continue the care taking roles that the parties had established. of the On rehearing, Mr. Young has embraced this reasoning, but children. During the record reflects that this was not his position below. trial, Mr. Young testified that he wanted to be the primary residential He also recognized that he was confronted parent for the children. with the considerable task of re-integrating As concerned future employment, he himself into the labor force. testified that he had three possible choices: 1) architecture, 2) construction, or 3) working in an entrepreneurial manner for himself. He observed that the first two options would require post-

graduate He estimated education directed towards achieving a master's degree. the cost of Later in his testimony, during a lengthy narrative, he said: this additional education at approximately $30,000. Judge, you have a difficult assignment of figuring out, you know, how to have-so everybody wins when the best situation is sort of Not loses basically everybody loses in the sense that nobody gets what they want. and everybody is unhappy and that's a winning situation. [Another father] has been able to arrange his schedule around his children and I need help to do it I just hope I can. and I want help to do it and Maybe the children should stay with Alice until I get it done I want to get it done. and the I want to get a job day I have the job they can come live with me. I want to be with them at three that allows me to be with them. o'clock when they get out until they go to bed. During closing argument, Mr. Young's lawyer followed up on the same theme: (Emphasis added). [Robert] I don't I would adopt that suggestion. suggested an alternative. He does need to get a job. think that it's an unreasonable suggestion. * * * Financially, right now, I'm not certain I can come up with a plan but I am certain I'm not a fan that there is a way to accommodate it. of temporary orders but certainly in this case it might be one that begs out for a temporary order to allow him an opportunity, without the children, without the responsibility for the children, to get on his feet. He needs to do that and I'll be the first to admit it and he's not going to do it while the divorce is pending and he's certainly not going to do it with two little children that he has to care for starting at three o'clock every day but, if he's willing and motivated, I think he can find a position that would allow him to have more time with the children at least than a 9:00 to 5:00 position and He might find someone who is willing to accommodate him. He might get lucky. maybe even more than that. Mr. Young's testimony, (Emphasis added). and his lawyer's summation, categorically establish that the continuity It argument adopted by the dissent was not raised in the trial court. is clear that neither Mr. Young nor his lawyer

were overly concerned with the continuity problem, as they were both willing to surrender primary custody during the proposed two year educational rehabilitation Moreover, in such a close case, this willingness to give Ms. period. Hector primary custody may well have tipped the scales in her favor. Indeed, the quoted portion of counsel's summation above is found on page 531 of the trial transcript, and on page 532 the trial judge designates Ms. Hector as the primary A party cannot invite error at the trial level residential parent. See Gup then be heard to complain about it on appeal. ton v. Village Key & Saw Shop, Inc., 656 So.2d 475, 478 (Fla.1995)(defining the invited error rule as follows: a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she has invited the trial court to make.); Held v. Held, 617 So.2d 358 (Fla. 4th DCA 1993); Poller v. First Virginia Mortg. and Real Estate Inv. Trust, 471 So.2d 104 (Fla. 3d DCA 1985). Even if the continuity argument had been made and properly preserved, a close analysis of the evidence establishes that the trial judge's decision does not frustrate Mr. Young testified that Ms. Hector was the parent who that goal. awakened the children, dressed them and He gave them breakfast. and Ms. Hector would share the responsibility of taking Under the final judgment, this process would the children to school. He testified that while the children were in school remain unchanged. he would return home and either work on his upcoming divorce, manage his stock market accounts or perform household errands. Nothing in the final judgment would change his during-school He indicated that either he or the housekeeper would pick activities. up the children at school and he would then share a variety of after-school Under the final judgment he would still be able activities with them. He further testified that he would have dinner with the to do that. Nothing in the final judgment will children on an almost daily basis. When Ms. Hector came home in the evening he would either change this. retire to his room or leave the house, and the children would spend time with their mother, who would talk with and In short, as far as the children are concerned, under Option 1 This also will remain the same. read to them. of the final judgment, nothing in their lives will change unless Mr. Young becomes unavailable due to his educational, or, ultimately, career If these objectives interfere with what the children have objectives. come to know, they will be equally obstructive if Mr. Young were It is therefore clear that designated the primary residential parent. the final judgment does not impede the continuity of the children's lives, nor does it significantly alter the care taking roles of their parents. I remain convinced by the panel decision and by the dissents of Judge Nesbitt and Judge Goderich that the trial court's award of the children's pri mary physical

residence to the mother is unsupported by As any cognizable, equitable consideration presented by the record. the panel opinion, which has not in my view been successfully challenged by any of the contrary briefs or opinions,1 demonstrates, the children's parents, who know and care most about their welfare, had themselves established an arrangement prior to the dissolution as a part of See Principles which, upon any fair assessment, the father was the primary caretaker. of the Law of Family Dissolution: Analysis and 2.03(6). Recommendations (Am. Law Inst.1998)(Tentative Draft No. 3, Part I) 2 As everyone agrees, under that regime, if not because of it, their girls have turned out to be well-behaved, welladjusted, and accomplished young women who love both their parents: just what we all devoutly wish for and See Principles There is simply no reason for a court to tamper with what has worked so well. from our children. of the Law of Family Dissolution: Analysis and 2.09(1). Recommendations (Am. Law Inst.1998) (Tentative Draft No. 3, Part I) 3 This is not only because it is almost always better to preserve a known good rather than to risk what the unknown future may bring, see Rumph v. V.D., 667 So.2d 998, 998 (Fla. 3d DCA 1996)(Schwartz, C.J., specially concurring), but, much more important, because the children are themselves entitled to stability in their lives and routine which would be compromised by any purposeless change in their In many areas, the law properly recognizes the caregiver. undesirability of disrupting the children's circumstances any more than is already necessarily required by their parents' separation and 61.13(3)(d), Fla. Stat. (1995). divorce. 4 See Mize v. Mize, 621 So.2d 417 (Fla.1993) 5 (relocation of custodial parent); Pino v. Pino, 418 So.2d 311 (Fla. 3d DCA 1982)(importance of This prin children's remaining in home). ciple finds special application in the rule that modifications of the custody provisions of a final judgment may be made only when there has been a change of circumstances adversely affecting the welfare of the Belford v. Belford, 159 Fla. 547, 32 So.2d 312 (1947); children. Ritsi v. Ritsi, 160 So.2d 159 (Fla. 3d DCA), cert. denied, 166 So.2d When, as here, the children have manifestly benefitted 591 (Fla.1964). from an arrangement established before the judgment, the same rule should apply. What happens when that rule is not applied is illustrated by the result in this very case, in which it was necessary below and has been found necessary on appeal to resort to other, inadmissible, factors to justify the so-called exercise of discretion by the trial court and the affirmance of that result by this one.6 A. In my opinion, there is no question whatever that the result below was dictated by the gender of It is usually extremely difficult to gauge the underlying motivations

the competing parties. of any human being and one resists even more the assignment of an unworthy or impermissible reason to any judge's exercise of her This case, however, permits no other conclusion. judicial functions. I believe that this is shown by contemplating a situation in which the genders of the hard working and high earning lawyer and the stay at home architect were reversed, but everything else remained the The male attorney's claim for custody would have been virtually same. laughed out of court, and there is no realistic possibility that the mother architect would have actually lost her children.7 (The fact, so heavily emphasized by members of the majority, that the hypothetical mother architect might have sought employment after the dissolution, as usually occurs, and that her time with the children would have therefore diminished, would have made no difference either.)8 It is, at best, naive in the extreme to suggest, let alone find, that the result below was not dictated by the evil of gender bias. B. By rejecting the obvious but unacceptable in its search for a basis for the result below, the majority has, in my opinion, relied upon something In the end, after a meticulous inquiry into the father's even worse. long past and non-parental conduct which few mortals could withstand, it bases its determination that the discretion of the trial court was properly exercised upon the belief that the record shows (or that the trial court might have properly believed) that Mr. Young is less sincere, less well motivated, less admirable and generally a worse person and As I might do myself, one may agree with this assessment a worse parent than Ms. Hector. of the parties while profoundly disagreeing, as I certainly do, with the idea that any such See consideration is a proper basis for decision-making in this field. Rumph, 667 So.2d at 998. It is of course true, as the majority repeatedly emphasizes, that a custody decision is one within the discretion of But judicial discretion may properly be exercised only on the basis the trial court. of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) factors which are legally pertinent to the issue involved. 9 ; see Farrior v. Farrior, 736 So.2d 1177 (Fla.1999)[24 FLW S297]. In Its this area, that issue is the children's best interests. resolution, in turn, cannot be based on a subjective assessment of the worth of the contending parties so long as, as was conclusively demonstrated in this case, the conduct and character We had, I traits referred to have not impacted upon the children. thought, come a long way from the time when a parent could be denied her parental rights-or, more properly stated, when the children could be deprived of their rights to having only their interests considered-merely because a judge may disapprove of her standards of conduct,

much less of Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). her character. 10 Apparently, I was mistaken. 11 See Anderson v. And Although only with the best erson, 736 So.2d 49, 53 n. 1 (Fla. 5th DCA 1999)[24 FLW D1273, D1275 n. 1](challenging Dinkel). of intentions, and fortunately in a case in which children will thrive in the care of either parent (or both of them), the majority has perhaps unwittingly provided that custody decisions are subject to the personal views of a particular judge, who sits as a Dostoevskian Grand Inquisitor, the effectuation of whose own notions of right and In a society wrong are subject to objective review by no one on this earth. of law and not persons, unknowable and unjudgable questions of character, personal worth, and even actual misconduct, if irrelevant to the issue under consideration,12 See S.B. should not govern decision making in this area or any other. v. D.H., 736 So.2d 766, 767 (Fla. 2d DCA 1999)[24 FLW D1563, 1564] (There is no Solomon within our judiciary who can accurately predict Results on who would be the better father for this child.). indistinguishable operative facts should not vary from courtroom to courtroom according to the moral preferences of the trial judge (or appellate panel) assigned by the luck of the draw to hear the case.13 Farrior v. Farrior, 736 So.2d at 1179 [24 FLW at S298](Pariente, J., concurring). 14 Because the majority's decision is to the contrary of these propositions, I believe that it is very wrong. I respectfully dissent. I entirely agree with the original decision and opinion of this court, filed June 24, 1998 at 23 Fla. L. Weekly D1529, 740 So.2d 1154. The heightened interest in the case prompts me to discuss the determinative factors which originally caused me to vote for reversal and against rehearing en banc. The record demonstrates that both the mother and the father of the children are completely and entirely fit and As the wife's law practice grew worthy (as the trial court found) to serve as primary residential parent. and prospered (she was working 11 and 12 hour days and was frequently gone overnight), she relied more and more upon the husband, who accepted the responsibility for the care and needs of The arrangement began in the fall the girls. of 1993 and continued until the 1996 dissolution proceeding which led to the husband Acquiescence to the child custody arrangement can 's summary eviction from the marital home. and has been found to be an important factor of various aspects of child See Farrell v. Farrell, 555 So.2d 1260, 1261 (Fla. custody problems. 3d DCA 1989); Berhow v. Crow, 423 So.2d 371, 373 (Fla. 1st DCA 1982); In re Marriage of Feig, 296 Ill.App.3d 405, 230 Ill.Dec. 685, 694 N.E.2d 654, 657 (1998); In re Marriage of Jackson, 682 N.E.2d 549 (Ind.Ct.App.1997); Wright v. Stovall, No. 01A01-9701-

CV-00040, 1997 WL 607508, at *5 (Tenn.Ct.App. Oct.3, 1997). Section This salient factor was wholly ignored by the trial court. 61.13(2)(b)1, Florida Statutes (1995), in part provides the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child. In Cherradi v. Lavoie, 662 So.2d 751 (Fla. 4th DCA 1995), the Fourth District observed that the tender years doctrine was impermissible as it The Fifth Id. at 753. used gender as a basis for awarding custody. District has noted that [ e]ven though [the tender years] doctrine was overturned by the legislature's gender neutral policy, there remains a temptation for many judges to consider the right to custody as the mother's to lose and unless her fitness is legitimately challenged, the father's right of equal consideration is ofAyyash ten ignored. v. Ayyash, 700 So.2d 752, 754 n. 3 (Fla. 5th DCA 1997). In this proceeding the trial judge totally ignored the gender neutral For example, at one point in the proceeding he asked the husb policy. and, Maybe there's something I don't understand It is extremely unlikely that any circuit judge in Florida would have asked the same question -why don't you get a job? of the mother of young children whose husband was then earning a substantial annual income. Sub silentio, this court like the trial court continues to pillory the father because he is not the substantial bread winner in the family. But there is little or no correlation between being the money maker or between being wealthy or not; in order to make one an effective parent. By today's decision, the court remains aligned with the traditional view that a mother will not lose her entitlement to become the primary residential parent unless her unfitness is demonstrated; no matter how act ively she is engaged outside of and away from the home, even though the other parent is fit and willing Such holding necessarily implies that to serve in that capacity. children therefore will be substantially or in part reared by a It occurs to me that both the children surrogate parent. and the societal interest are better served by placement with a natural parent who is available. Given the parties' own conduct toward the care and rearing of these children it leaves no doubt that their best interests would be that they remain with their primary care giver; here their natural father. Where parents themselves have established an arrangement (which they do not either dispute, contradict or refute)

which supports the children's best interests-there is no reason for the courts to interfere. I therefore dissent with the child custody dispute but agree with reversal of the financial issues, because that portion of the judgment is skewed as the rest. GODERICH, J. (dissenting): I respectfully dissent for the reasons expressed in the panel opinion. Young v. Hector, 23 Fla. L. Weekly D1529, 740 So.2d 1158 (Fla. 3d DCA It is incomprehensible how the majority 1998). of the en banc panel can agree that the trial court abused its discretion in virtually every final ruling it made, except as to its ruling on the award of primary It is apparent that the trial court also abused residential custody. its discretion by awarding primary residential custody of the minor children to the parent who has been working long hours as a senior litigation partner in one of Miami's top law firms as opposed to the parent who has not worked outside of the home for the three years preceding the filing of the dissolution action. The majority opinion focuses on the fact that the parties did not mutually agree that the father would stay at home to care for the children. Although it may be true that the mother did not expressly agree, the record demonstrates that the mother nonetheless acquiesced to this For example, arrangement by allowing it to continue for three years. although the parties had separated, the mother permitted the husband to live in the marital home and Moreover, there is no doubt that the mother benefited from this arrangement ( to continue his role as a stay-athome parent. and As a result possibly that is why she allowed it to continue). of this caretaking arrangement, the mother was free to dedicate herself to her legal career by working extremely long hours1 without having to worry about whether the minor children's emotional Also, the record indicates that the children needs were being met. also benefited from their father's role as the primary caretaker since he was actively involved in their school and after-school activities. Further, I believe that gender played a role in the trial court's decision, and continues At one point, the trial to play a role in this Court's decision. court, while questioning the father as to the nanny's role, stated to Why don't you get a job. the father: Maybe I'm missing something. Shortly thereafter, the trial court also stated: Why [sic] do you The majority opinion need the nanny for, if you're there doing it? claims that

this inquiry by the court is not evidence of Given the undisputed large financial indebtedness gender bias. of this couple, the trial court's inquiry about the need to employ a full-time nanny was both logical and practical under these circumstances and certainly could have also been appropriately posed to the mother if she had been recalcitrant about seeking gainful employment to assist the family's financial situation. I (Maj. op. at 1162). do not agree with the majority's observation that these statements had nothing to do with gender bias, but rather was a result of During the trial court's exchange with the husb the parties' financial condition. and, there is nothing that would indicate that the trial court was concerned Further, I (Maj. op. at 1162). with the parties' financial condition. find it extremely hard to believe that if the roles were reversed any trial judge would question a mother's lack of employment or the employment of a Moreover, the nanny when the father earns over $300,000 per year. record indicates that it was the mother, not the father, who employed (Maj. op. at 1159). the nanny. The majority opinion also suggests that the father should have obtained gainful employment in order to financially assist the household and minor children in light of The record clearly demonstrates that with the husb the parties' financial condition. and's present skills, he did not have the ability to earn a substantial amount of Further, this was not a family in which the working parent was earning $30,000 money. and any additional sums earned by the other parent would have been helpful to provide the children with basic necessities such as food, clothing, and The record clearly establishes that the minor children's basic necessities were more than taken care shelter. of There are certain things that money cannot buy . and that a nanny cannot provide, such as the attention of caring parents. Once again, I do not believe that if the roles were reversed (a father who earns over $300,000 per year and a non-working mother), the majority would have suggested that the children would have been better off if the mother would have attained employment when her earning potential is limited and the Instead, the majority father already makes over $300,000 per year. would have probably suggested that the father restructure his debt, sell assets, and/or cut down on expenses so that the mother could continue the caretaking role that was established during the marriage. The majority opinion also addresses the three determinative factors that the guardian ad litem looked at in recommending that the mother be named First, the guardian focused on the the primary residential parent. fact that the mother has been more economically stable throughout the marriage. Once again, if the roles

were reversed, I believe that the guardian ad litem would not have considered economical stability as a Further, in light determinative factor. of the child support guidelines, a parent's financial resources should never be considered as a determinative factor in deciding which parent should be awarded primary residential custody of the minor children. The second determinative factor was that the mother has been the more The guardian ad constant factor throughout the entire relationship. litem focused on the fact that the father had been away from the home for substantial periods of time I feel that it is important to explain why the father had been away First, when the parties decided to move to Miami, the from the home. father stayed in New Mexico for approximately three months in order to move the family's possessions to Miami and to make improvements to the marital home so that the parties could sell Second, the husb the home at its highest possible price. and, was away for three to four weeks to be with his ill brother, who died shortly after he arrived, and to Finally, the father was in New help settle his brother's estate. Mexico from June 1992 to September 1993 in order to direct a treasure The majority relies on the treasure hunt to make it hunt project. However, appear as if the treasure hunt was a crazy or weird notion. what the majority has failed to state is that it may not have been so strange since the mother's parents and trial Therefore, the reasons for the counsel also invested in this project. Further, the fact that the father's absence from the home were valid. father had been away from the family should not be a determinative factor when taking into consideration that the father has been the primary caretaker since the fall of 1993. Finally, the third determinative factor was that the mother controls her anger The guardian ad litem testified that the better around the kids. father would say things in the presence of the children that indicated to me his anger and his displeasure at what he perceives to be the financial inequities of the I agree with the guardian ad litem that being able to situation control anger is an important factor in deciding child custody issues. However, the father's anger was based on the financial inequities of the situation, a problem that should be completely resolved based on the majority's decision to reverse and remand all financial determinations made by the trial court, including the insufficient award of alimony to the father and the inequitable distribution of the marital assets and liabilities. Finally, I would like to note that the scenario contained in the present case is In situations where families are fortunate enough to have one unique. parent stay at home to care for the children, it is usually the mother. Because the present situation is not the norm, this may be why it is difficult to see that the trial court

abused its discretion by not awarding primary residential custody of the minor children to the father, the parent who has not worked outside of the home for the past three years in order to care for the minor children. For all these reasons, I dissent as to the majority's decision as to the child custody issue, but agree with the majority, as I originally did in the panel opinion, that the financial issues must be reversed and remanded for further proceedings. FOOTNOTES 1This certainly was a valid consideration which could have factored into the lower court's determination as to the custody . of the minor children in this case. 2. The fact that the children deemed their mother to be the go to parent when they were ill or distressed during the night speaks volumes about which parent they deemed to have been their constant caregiver. Moreover, it supports the guardian ad litem's observation that the mother had been the more constant factor throughout the entire relationship. 3You testified that you had tried to get Alice to put together a budget [Q] . and typically she would say to you, We don't have that much money.Did she not every time follow it up with a comment, And you Did she ever suggest to you you need to go to work?[Father] No.[Q] On more than five Yes.[Q] needed to go to work?[Father] Oh, yes, when she filed for (objections/occasions) [sic]?[Father] divorce, it was a lot more than five occasions. 4. In the evenings, when Alice comes home, do As the father testified:[Q] you pretty much absent yourself since the time that she's indicated that Yes she wants this divorce?[A] and She, a lot no. of times, likes to sit down have a little time to herself and eat dinner and Then after that she will engage the kids. not be bothered. And I will either leave the house and leave her with the kids or I may go to my room or I may go to the study and I don't generally sit down next to her close the door. and say, Yes, I try to give her space Let's all play this game together. I don't compete with her, with the kids, as I mentioned earlier. Do you spend most evenings either.[Q] and I spend, because Most evenings, I don't know. some nights away from the home?[A] of the situation, a good deal of time away after she comes home. 5. The trial court's skepticism about the father's actual availability for the children during the day was also borne out by an observation The report indicated that made by the guardian ad litem in his report. the mother was late for her

scheduled appointment with the guardian because upon learning that the youngest child had become ill during school, the mother had to arrange for her brother to pick up and care for the child until back up help became available, due to the unavailability of the father. 6. Interestingly, the father's own attorney conceded in closing argument that the father needed to be gainfully employed.He needs to do that [find employment] and I'll be the first to admit it and he's not going to do it while the divorce is pending and he's certainly not going to do it with two little children that he has to care for starting at three o'clock every day but, if he's willing and motivated, I think he could find a position that would allow him to have more time with the children at least than a 9:00 to 5:00 position and He might find someone that's willing to accommodate him. He might get lucky. maybe even more than that. 7It is interesting that both, the guardian ad litem . and the father's own attorney recognized the unreasonableness of the father's proposed plan to remain at home full-time with the children as The guardian ad their custodial parent without gainful employment. litem observed in his report the following:Finally, it is my belief that the Husband's plan to remain a full time parent is unrealistic; and although he rationalizes that things would be different if he were a woman, I don't believe that the Court would treat a woman with the same background and qualifications any differently from a man, in the absence of an agreement between the parties, which both sides agree does not exist; Similarly, during closing arguments, the father's counsel observed:Essentially it's an Mr. Young's position right now, economic issue versus a time issue. which we all agree is unreasonable, is the best for the children.If you were to stay home and be supported and be with the children and get rid of the I don't think that's a housekeeper that would be the best scenario. I don't think anyone is suggesting it. fair scenario. 1Much . of the picking at the panel fallaciously assigns the caretaking functions of the housekeeper to the mother and relies upon a possible change in the circumstances of the parents which might follow the dissolution. 2Caretaking functions are tasks that involve interaction with the child or direct the interaction 2.03 Definitions(6) . and feeding, bedtime Caretaking functions include(a) care provided by others. and wake-up routines, care of the child when sick or hurt, bathing, grooming, personal hygiene, dressing, recreation and play, physical safety, transportation, and other functions that meet the daily physical needs of direction the child;(b) of the child's various developmental needs,

including the acquisition of motor and language skills, toilet training, selfconfidence, and discipline, instruction in manners, assignment maturation;(c) and supervision of chores, and other tasks that attend to the child's needs for behavioral control and self-restraint;(d) arrangements for the child's education, including remedial or special services appropriate to the child's needs and interests, communication with teachers and counselors, and supervision of the development homework;(e) and maintenance of appropriate interpersonal relationships with peers, siblings, and adults;(f) arrangements for health care, including making appointments, communication with health-care providers, medical follow-up, and moral guidance; home health care;(g) andarrangement (h) of alternative care by a family member, baby-sitter, or other child-care provider or facility, including investigation of alternatives, communication with providers, and supervision. 32.09 Allocation . of Unless otherwise resolved by agreement Custodial Responsibility(1) of the parents or unless manifestly harmful to the child, the court should allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation 4(3) For purposes . of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of The length *(d) * the child, including, but not limited to:* of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. 5. Adopting opinions in Hill v. Hill, 548 So.2d 705 (Fla. 3d DCA 1989)(per Nesbitt, J.; Schwartz, C.J., specially concurring), review denied, 560 So.2d 233 (Fla.1990). 6Crediting the past record . of the division of caretaking functions between the parents also has the very salutary consequence of avoiding reliance on such factors as the expressed preferences of the children, see Fla.R.Fam.Law P. 12.407, and, even more, the misnamed expert opinions of participants in the thriving cottage industry of See Principles forensic child psychology. of the Law of Family Dissolution: Analysis and Recommendations (Am. Law Inst.1998)(Tentative Draft No. 3, Part I); Regan v. Regan, 660 So.2d 1166, 1168 (Fla. 3d DCA 1995)(Schwartz, C.J., dissenting in part); Keesee v. Keesee, 675 So.2d 655 (Fla. 5th DCA 1996)(Griffin, J., The majority's refusal to follow the prior concurring specially). caretaking arrangement rule in this case may well result in emphasis

(Commendably, however, despite the upon these factors in the future. depth of their own dispute, the parties here at least did not require their girls to choose up sides in the litigation nor involve them in an unnecessary and damaging process of psychological testing, treatment, and disclosure.) 7That the issues have so . often been put in these terms, which better describe a sports event than a dispassionate search for a result which most benefits the children is one of the most unfortunate aspects of See Mize v. Mize, 621 So.2d 417, 420 (Fla.1993)(Barkett, J., concurring) (expressing grave doubts as to wisdom this case. of That it should be widely thought that a mother, employing adversary process in resolving family issues). and only a mother, is considered morally or maternally deficient if she is not granted custody, is a testament to the pervasiveness of That the majority decision will likely serve to perpetuate both sexual stereotyping in our supposedly gender-blind society. of these fallacies is disheartening. 8That working fathers have almost never actually gained custody has not prevented the use . of such claims or even the threat of bringing them as effective bargaining chips-meaning instruments of extortion-in settling the financial disputes which are usually the only real issues Taking the majority at its word that the sex in these cases. of the working parent makes no difference, the result in this case, which means that a non-caretaking father may actually succeed in taking the children away from the mother, will inevitably result in a great increase in the dollar value of this nefarious tactic, and in the involvement of the courts in the use of children as pawns in personal disputes between alienated spouses. Of all the many adverse consequences of today's decision, these may be the most serious. 9Quoting from B. Cardozo, The Nature . of the Judicial Process 141 (1921):The judge, even when he is free, is still He is not a He is not to innovate at pleasure. not wholly free. knight-errant roaming at will in pursuit of his own ideal of beauty or of He is not to yield to spasmodic sentiment, to vague He is to draw his inspiration from consecrated principles. goodness. and He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, unregulated benevolence. and subordinated to the primordial necessity of Wide enough in all conscience is the field order in the social life. of discretion that remains.Canakaris, 382 So.2d at 1203. 10. Poor moral choices are insufficient grounds to modify custody, absent Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); some impact on the child. Frequent moves, a Jablon v. Jablon, 579 So.2d 902 (Fla. 2d DCA 1991). less stable

lifestyle, even poor relationship choices standing alone may not support a custody modification where the residential parent has moved out of necessity, has subsequently established a stable home, and the See Jablon v. Jablon, 579 So.2d child's needs have always been met. 902 (Fla. 2d DCA 1991); Kelly v. Kelly, 642 So.2d 800 (Fla. 2d DCA 1994).Sullivan v. Sullivan, 736 So.2d 103, 105 (Fla. 4th DCA 1999)[24 FLW D1473]. 11. And erson v. Anderson, 736 So.2d 49 (Fla. 5th DCA 1999)[24 FLW D1273] shows the consequences of There, a special master took the children away from their mother apparently because the majority holding in this case. of her perceived misconduct which, as the dissent establishes, did not affect The reviewing circuit judge, like the panel her their well being. e, reversed that decision but was in turn reversed by the Fifth District which, like our en banc court, found that the master's recommendation was not an abuse of Judge Thompson's dissenting opinion demonstrates the incorrectness discretion. of upholding a particular decision as an exercise of discretion in the absence of any It legitimate basis upon which the decision could have been reached. shows also, if we must put the issue in genderbased terms, that the decision may well backfire against many mothers, the vast majority of whom, because they so much more often have actually been the children's caretakers before the dissolution, have historically been granted custody. 12I have long held . and often expressed the opinion that, in certain circumstances, a good case can be made for considering, dare I say it, fault in determining the financial consequences of a dissolution, on the grounds that it concerns only issues between husband and wife and that it may beimproper to permit an errant spouse to destroy a marriage and then to claim benefits equal to those which would have been provided had it remained intact.Smith v. Smith, 378 So.2d 11, 15 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); Pitts v. Pitts, 412 So.2d 404, 405 n. 1 (Fla. 3d DCA 1982); Martin v. Martin, 366 So.2d 475, 475 (Fla. 3d DCA 1979)(Schwartz, J., specially concurring); see also Baxter v. Baxter, 720 So.2d 624, 624 (Fla. 5th DCA 1998)(Harris, J., concurring and It seems, at least to me, ironic, concurring specially). and it is certainly personally upsetting, that the law is now completely to the reverse of Such cases as Noah v. Noah, 491 So.2d 1124 (Fla.1986) what I think it should be. and Heilman v. Heilman, 610 So.2d 60, 61 (Fla. 3d DCA 1992) establish that Florida will not permit misconduct to interfere with the right to recover money and property from one's ex-spouse. Anderson v. Anderson, 736 So.2d 49 (Fla. 5th DCA 1999)[24 FLW D1273] and the majority opinion here establish that the welfare of children can be compromised by a judge's adverse opinion of the character or lifestyle of one of their note that applying For all the good it will do, I protest.(I parents.

my views to this case might conceivably result in a reversal of the custody and child support rulings below but an affirmance of the alimony and equitable distribution provisions-just the opposite of what the court has done.) 13. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978)(Letts, J.), cited in Smith v. Smith, 378 So.2d at 11. 14Quoting from Canakaris:The discretionary power that is exercised by a trial judge is not, however, without limitation, . and both appellate and trial judges should recognize the concern which arises from substantial disparities in domestic judgments resulting from basically similar The appellate courts have not been helpful in factual circumstances. Our decisions this regard. and those of the The district courts are difficult, if not impossible, to reconcile. trial court's discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification The trial courts' discretionary power was never for the result. intended to be exercised in accordance with whim or caprice of the Judges dealing with cases judge nor in an inconsistent manner. Different results essentially alike should reach the same result. reached from substantially the same facts comport the neither logic nor reasonableness.382 So.2d at 1203. 1 The majority is Even the majority agrees that the mother's working hours are not typical. . of the opinion that typical working parents arrive home between 5:30 and (Maj. op. at 1159). 6:00 each evening. GREEN, J. JORGENSON, COPE, LEVY, GERSTEN, FLETCHER and SORONDO, JJ., concur.SORONDO, J. (concurring).